Joe Manchin, the former governor, was sworn in as the junior United States Senator from West Virginia yesterday. West Virginia is one of less than ten states that does not have an official lieutenant governor to assume the governorship. Instead, the West Virginia Constitution provides in Article VII, section16, "Vacancy in governorship, how filled":

In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.

The problem is separation of powers under the state constitution. A member of the legislative branch, president of the Senate, Earl Ray Tomblin, who was sworn in as governor yesterday, is now the head of the executive branch. The West Virginia Constitution specifically prohibits a person serving in two branches of state government. Article V provides:

The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.

Thus, Article V conflicts with Article VII, section 16, which provides for one person to occupy positions in two branches. However, section 16 clearly contemplates such a state of affairs as a temporary solution: "until the vacancy is filled." But how temporary? And how is the vacancy to be filled?

ConLawProf Robert Bastress at WVU College of Law argues that the legislature should be given the opportunity to solve the problem. WV attorney Thornton Cooper intends to file a lawsuit with the state supreme court to require a special election. Their views and a discussion of the law is available from WV public television in the segment below.

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Comments

A thorny and interesting problem. Here's my initial (admittedly hypertextualist) take: The text of the WV separation of powers provision forbids one from exercising the powers of two co-equal branches simultaneously (but not from holding two co-equal offices at the same time, interestingly). This form of separation of powers provision may be constrasted with those of several other states (E.g., Florida's Article II, Section 3) containing language to the effect that "no member of one branch may exercise the powers of another branch." This latter form would seem to prevent the Senate President from holding that office while also exercising the powers of the Acting Governor, while the West Virginia provision would seem to prevent the Senate President from exercising the powers of both at the same time.

Thus, it seems that, if the two West Virginia provisions are to be reconciled, then the Senate President must be forbidden from exercising any legislative powers (voting, proposing or sponsoring bills, presiding over the Senate, etc.) until he ceases acting as the Governor. I do not think that this means he loses his position or his seat, though--just that he is for all practical purposes "absent" or "disabled from the office" during his time as Acting Governor. That way, he does not "exercise the powers of more than one [branch] at the same time."

Posted by: Scott Bauries | Nov 16, 2010 6:27:21 AM

I live in Parkersburg West Virginia. Our city Charter is available online, plus I have a copy given to me by our City Attorney.
I've been told by the State Attorney General's office that there is no time limit on a recall. However , Our city attorney and city clerk remain sure that we only have 30 days.
The Attorney Generals office also said that state code had been repealed on Referendum, to 45 days, and our city code is wrong, but it still does not affect the Recall.
Can you give me your opinion on recall procedure?http://www.conwaygreene.com/Parkersburg/lpext.dll?f=templates&fn=main-h.htm&2.0